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| John L. Hill |
But Jeremschuk continued by adding, “and sometimes say things that piss people off.” That opened the conversation to Jeremschuk criticizing Jakubec for talking about him behind his back to other neighbours. The conversation degenerated into name-calling. Jakubec grabbed Jeremschuk by his T-shirt.
Jeremschuk then took hold of the neighbour’s shoulders violently, forcing him to the garage floor. In the altercation, Jakubec did not let go of his grip on Jeremschuk, tearing Jeremschuk’s shirt. Once he stood up, the neighbour punched Jeremschuk in the face, giving him a black eye. Jeremschuk responded by
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The neighbour complained to the police, and Jeremschuk was charged with aggravated assault. On April 20, 2022, Jeremschuk was found guilty by Justice Ferne LeReverend, who rejected Jeremschuk’s claim of self-defence. Jeremschuk appealed. The Alberta Court of Appeal handed down its decision on Aug. 14, 2024 (R. v. Jeremschuk, 2024 ABCA 268).
Two Alberta appeal court judges, Frans F. Slatter and Kevin P. Feehan, allowed the appeal and ordered an acquittal while Justice William T. deWit dissented and would have upheld the verdict.
The majority judgment began by noting that this was not a case dependent on findings of credibility. The trial judge accepted Jeremschuk’s evidence without qualification and criticized the complainant’s testimony as “bizarre.”
The majority accepted the principle set out in R. v. Brunelle, 2021 QCCA 783, that an appeal court cannot set aside findings of credibility made by a trial judge. The appellate analysis focused on determining if the three grounds of finding self-defence set out in s. 34(1) of the Criminal Code are met. The Supreme Court in R. v. Khill, 2021 SCC 37, called the three requirements “the catalyst,” “the motive” and “the response.”
Both the Crown and Defence agreed the catalyst was present. The neighbour grabbing Jeremschuk’s shirt started the physical assault. Finding the motive requires the trier of fact to ensure that self-defence requires the individual claiming it as acting to defend themselves or others from the use or threat of force. It cannot be used for vigilantism, vengeance or other personal motivation. In this case, the appellant had admitted he was angry, but the only evidence on record was that his actions were taken in self-defence.
When considering the response, a court must consider the peril in which the accused found himself. The trial judge held that Jeremschuk’s reaction was “way out of proportion” and “unacceptable.” But, as stated in R. v. Robinson, 2019 ABQB 889, people in peril do not have time for complete reflection and errors in judgment can be made. The trial judge erred in finding that the accused before her had never considered his peril. The appeal court found the accused had never been cross-examined about whether he considered himself in peril or felt fear. There was no evidence to base the trial judge’s conclusion.
The dissenting judgment viewed the majority as taking the trial judge’s acceptance of the accused’s evidence too literally. The dissenting justice asserts that the trial judge was accepting only the narrative in which events occurred. Reading her judgment, it is clear that the trial judge did not accept Jeremschuk’s statements about motivation. The true motivation was to punish the complainant, defeating his defence (R. v. Hodgson, 2024 SCC 25). There was no reality to the appellant’s claim he was defending himself.
Justice Slatter accepted that the trial judge used reasonable inferences to determine the accused’s motivation. The accused’s state of mind should be evaluated by considering his actions measured against the surrounding circumstances. Whether the accused was in peril also depends on evaluating the circumstances. In this case, the accused was 35, six feet tall and weighed 200 pounds. The complainant was 59, five feet five inches and weighed 140 pounds. It was reasonable for the trial judge to discount the accused’s belief that he was in danger.
This was a case comparable to R. v. Brunelle, 2022 SCC 5, where a trial judge had initially rejected a claim of self-defence and found vengeance to be the motivating factor. The Court of Appeal majority judgment disagreed and ordered a new trial. The Supreme Court of Canada upheld the trial judge’s finding and stated an appeal court could intervene when a trial judge’s assessment of credibility “cannot be supported on any reasonable view of the evidence.” Justice Slatter would have dismissed the appeal
Perhaps if this is what good neighbours do, the parties involved here could have avoided extensive hardship and litigation by studying Robert Frost's poetry, which quotes the advice, “Good fences make good neighbours.”
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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